DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

JRE
Docket No: 3233-01
28 December 2001

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 13 December 2001. Your allegations of error and
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board.
consisted of your application, together with all material submitted in support thereof, your
naval record and applicable statutes, regulations and policies.

Documentary material considered by the Board

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board substantially concurred with the rationale of the
hearing panel of the Physical Evaluation Board which considered your case on 13 December
2000, a copy of which is attached. Accordingly, your application has been denied. The
names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be
taken. You are entitled to have the Board reconsider its decision upon submission of new
In this
and material evidence or other matter not previously considered by the Board.
regard, it is important to keep in mind that a presumption of regularity attaches to all official

records. Consequently, when applying for a correction of an official naval record, the
burden is on the applicant to demonstrate the existence of probable material error or
injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

SAN DIEGO FORMAL HEARING RATIONALE

The final TDRL periodic evaluation was held at Naval Hospital, Bremerton,
Washington on 07 August 2000,

with the following diagnoses:
1. Mixed spasmodic dysphonia of unclear etiology (478.79)
2. Stuttering (307.0)
3. History of excised squamous cell carcinoma of the lower lip

(V10.02)

The Informal Physical Evaluation Board found the member unfit for duty on
29 August 2000 under VA Code 8099-6516, rated his condition at 10%
disability and separation from the naval service with severance pay.

The member's hearing was held telephonically on 12 December
member requested to be found unfit for duty and rated 30% disability for
neurogenic voice disorder under VA Code 8099-6516 and rated 50%
disability for post-traumatic stress disorder under VA Code 9411 for a
total disability rating of 60%

disability and placement on PDRL.

2000.

 

The

Accepted documentary evidence consisted of:

Exhibit A 
Exhibit B  
Exhibit C 
Exhibit D 
Exhibit E  
Exhibit F  
Exhibit G  
Exhibit H  

- PEB Case File
- Veterans Administration Medical File
- Social Security Administration Notice of Decision
~ Health and Human Services letter of 31 May 1995
- Undated letter from Deborah Netherly
- Undated letter from Holly Netherly
- Undated letter from John Barkley
- 

NCPB/PEB  Policy letter  

2-2000

There's a description of the member's voice in the medical
The member

Medical Board of 09 August 1995 reports a diagnosis of neurogenic voice
In the body of the medical board the neurogenic voice disorder
disorder.
is further defined as a spasmodic dysphonia and presumptive basal ganglia
dysfunction.
board which states that
underwent a very extensive  
neurologic  and psychiatric evaluation and
"speech disorder was judged to be neurogenic in origin". The board goes
on to state "there is absolutely no evidence of psychiatric dysfunction
in this patient".
after the medical board indicates the member's voice disorder was
manifested by "an effort for whisper".

a clinic note of 12 October 1995 written

"the patient is able to whisper".

Finally,

The member appeared via telephone before the Formal Board and spoke in a
clear voice without any evidence of whispering.
The member did have a
marked intermittent stuttering.
of basal ganglia dysfunction and is not attributable to the spasmodic
dysphonia for which the member was originally rated.

However, stuttering is not a reflection
The TDRL exam of  

07

Enclosure 

(1)

1

The evaluating physician noted that the

August 2000 notes the member complained of "difficulty vocalizing
specific words at times".
"includes stuttering and some hesitancy". There was no
member's speech
indication of the member's speaking in a whisper.
This is consistent
with his speech at the time of the Formal Board when the member spoke in
a clear voice.
diagnosis:
the evaluating neurologist separated the two diagnoses which makes clear
that the stuttering is not a part of the spasmodic dysphonia.

the evaluating physician made two separate

spasmodic dysphonia and stuttering.

In fact,

This is important because

In the member's testimony,
there was nothing to indicate that member's
spasmodic dysphonia was currently an unfitting condition. The member had
multiple complaints in his testimony and his wife's testimony, but none
of these was because the member could not speak above a whisper. In
fact, there was no specific complaint that the member's stuttering was
actually unfitting.

The member's wife testified to the member's forgetfulness, difficulty
concentrating, impaired short-term memory, and impaired abstract
thinking.
This is actually consistent with exhibit C which contains the
Social Security Administration evaluation that indicated that the member
had some nonspecific mental disorder which was not specifically related
to the member's dysphonia for which the member was originally rated.

This was critically

"absolutely no evidence of psychiatric

Article 3618 of SECNAVINST  

The member did however request to be rated for PTSD.
important because the data are unequivocal in the medical board of 09
August 1995 that the member showed
dysfunction" at the time of the medical board.
This was part of an
extensive evaluation done because the origin of the member's dysphonia
was obscure.
member cannot be rated for his PTSD unless it was an unfitting disability
"at the time when the member was placed on the TDRL".
This assumes of
course that the member actually had PTSD while entitled to basic pay.
The member and his wife both state that the member was diagnosed with
PTSD in 1971 and again in 1991 after his service in Vietnam and service
in the Gulf respectively.
record.
However, it must be noted that even stipulating arguendo that
the member had been diagnosed in 1971 or 1991 with PTSD, that is not the
issue.
separately unfitting condition due to PTSD at the time member was placed
on TDRL.
The medical board makes unequivocally clear that this was not
the 
it is beyond the purview of the Formal Board to
evaluate the member's putative diagnosis of PTSD.

The only issue is whether the member was suffering from a

This is not supported by the documentary

1850.4D  makes clear that the

case.. Therefore,

In sum, the member was placed on the TDRL for dysphonia as manifested by
speaking in "an effort for whisper".
speaking in an effort for whisper but does have some stuttering which is
a separate diagnosis.
stuttering at the time when he was placed on the TDRL so this would not
be a ratable condition in any case in accordance with Article 36-18.
member's complaints all dealt with his forgetfulness, difficulty

There was no evidence that the member was

Currently, the member is not

The

Enclosure (1)

2

and short-term memory loss along with his irritability,

concentrating,
but none of these is attributable to his dsyphonia.
member's current symptoms would indicate that the member is probably not
currently unfit for his original diagnosis. However, after careful
consideration of all relevant medical evidence viewed in the light most
favorable to the member,
the Formal Board finds that the member is in
fact unfit for continued naval service and should be separated and rated
under VASRD Code 8099-6516 for his neurogenic voice disorder for a total
10% disability.

A careful reading of

REVIEWED AND AUTHENTICATED:

Enclosure (1)